Altruistic surrogacy is often one of the most beautiful parts of our area of law. I understand however many of you may hold a very different view, after reading articles in the media in the last couple of days regarding a surrogacy arrangement that went terribly wrong.
Of course what is a media report without some sensationalism and this article certainly has not disappointed in that regard. However it should be recognised that this is a fairly complex area of the law where not one but three different Acts, being the Surrogacy Act 2010 (Qld), Status of Children Act 1978 (Qld) and Family Law Act 1975 (Cth) and two different jurisdictions intersect, being both the state and federal jurisdictions. Who told you this was going to be easy right?
There are many legal hoops that need to be jumped through in order to providethe intended parent with the greatest chance of being recognised as the parent of the child born as a result of a surrogacy arrangement.
In order to give you a better appreciation of the complexity of the situation, here are a couple of fun facts:
- The law recognises that the woman who gives birth to the child is the child’s Mother, regardless of the genetic makeup of the child. Luckily that person is generally very easy to identify. It is a bit more tricky identifying who is recognised at law as the Father (and that is a story for a whole other blog!).
- In order for the intended parents (or in the case of the above mentioned news article, the “genetic parents”) to be recognised as Parents under the Family Law Act, there needs to be a Parentage Order made in the Queensland Courts. Both the birth mother and the intended parents must agree in order for a Parentage Order to be made.
Unfortunately in some cases whilst the parties have the best of intentions at the outset, things change throughout the pregnancy which sometimes result in their intentions at the time of the child’s birth being quite different. There is always a risk that once a child is born, the birth Mother may choose not to relinquish the child to the intended parents and/or not to apply for the transfer of parentage to the intended parents. Whilst heart-breaking for the intended parents (who sometimes have even supplied all of the child’s genetic material) the birth Mother has this legal right.
There is still recourse for the intended parents in situations like this, in that they can apply to the Family Court for parenting orders, which is what the parents did in the case referred to, however this does not necessarily make them the parent of the child. Rather this gives them parental responsibility for the child (the difference here is again a topic for another day).
By and far, the majority of these arrangements occur without a hitch and result in enabling those who believed they may never be able to share in the joy of parenthood, to do just that. However in a situation where there are real risks it is crucial for anyone considering entering into these arrangements (either as the intended parent/s or the surrogate) to obtain realistic and comprehensive legal advice. Whilst you cannot always control the future, your best preparation is knowledge, and understanding when embarking on the journey.
We love being a part of a surrogacy arrangement and in many instances can provide support in these matters on a fixed fee basis. Contact our office today to find out more about where you stand today.